Building Safety Act 2022: Assessing the Evidence Needed to Support an Application for a Remediation Order (Mistry v Wallace Estates – 2023)

As applications for Remediation Orders and Remediation Contribution Orders start to reach the tribunals, this decision assesses the evidence required to support a successful Remediation Order application.

The background

In Mistry v Wallace Estates [2023], the subject residential block was a former office building, converted to contain 189 flats over 12 storeys. Defects in the building were identified, including fire compartmentation, entrance and internal doors to flats, entrance hall, smoke shaft and fire protection in the structure of the building.

The tenants’ evidence centred on the report of a fire engineer expert, while the respondent relied on those of a surveyor and compliance reports. Prior to the First-tier Tribunal hearing, an issue arose with the respondent’s surveyor report which resulted in there effectively being no dispute as to whether the Remediation Order should be made.

The FTT was therefore left to determine the terms of the Order and the appropriate time limit within which defects should be remedied.

The decision

The FTT agreed with the landlord, which had argued that the Remediation Order should be made in general terms. The tenants had sought a much more detailed and specific Order.

Specific detail was not appropriate, and the FTT referred to Waite v Kadai, where some flexibility was allowed for in the Remediation Order.

The FTT stated in its judgment that, while the order should be sufficiently precise such that a respondent knows what it must do to remedy defects, the extent of that precision varies from case to case. The Tribunal referred to a number of cases where this approach had been taken, allowing a general order to be made that requires works to be undertaken but protecting the landlord against possible actions for non-compliance by permitting it to apply for variation of the order.

In the present case, the works were required to be completed within a period of 18 months. The landlord had sought a period of 24 months, and the tenant sought a 12-month period. The FTT found a middle ground based on its assessment of the evidence, although the Tribunal will generally favour the landlord’s evidence in respect of timing as that is the party undertaking the remediation works.

Advice and action for landlords

This case makes a useful point of reference for landlords and managing agents in terms of the evidence it will consider and requires for the grant of a Remediation Order, in particular the Tribunal’s finding that orders may allow some flexibility for landlords and do not need to be drafted in specific terms.

Further, landlords will be reassured that their evidence in respect of timings is likely to be considered more favourably by a Tribunal. J B Leitch will continue to keep these early applications in respect of Remediation Orders under review as the case law develops in this area.